[2011] KEHC 2857 (KLR)
The court declined to strike out the defendant's defence for non-compliance with the earlier discovery order, reasoning that the Civil Procedure Rules 2010 had come into effect since the application was filed. The new rules provide a comprehensive regime for preparing cases for trial, including discovery, witness...
Source-derived case information.
- Citation
- [2011] KEHC 2857 (KLR)
- Parties
- Plaintiff: Andrew Atambo; Defendant: Continental Developers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4879 of 1988
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence for Non Compliance With Discovery Order
- Outcome
- Application to strike out defence declined; parties directed to prepare for trial under Civil Procedure Rules 2010.
- Legal Topics
- Discovery Non Compliance, Striking Out Pleadings, Case Management, Application of New Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Atambo
Plaintiff
Continental Developers Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence for Non Compliance With Discovery Order
Legal Issues
- 1 Whether the defendant's defence should be struck out for failure to comply with a court order on discovery.
- 2 Whether the application should be determined under the previous Civil Procedure Rules or the new Civil Procedure Rules 2010.
Ratio Decidendi
The court declined to strike out the defendant's defence for non-compliance with the earlier discovery order, reasoning that the Civil Procedure Rules 2010 had come into effect since the application was filed. The new rules provide a comprehensive regime for preparing cases for trial, including discovery, witness statements, and other pre-trial procedures. The court directed the parties to proceed under the new rules and prepare the case for trial accordingly, emphasizing that the new procedural framework supersedes the previous regime and offers sufficient mechanisms to address non-compliance and case management issues.
Court Disposition
Application to strike out defence declined; parties directed to prepare for trial under Civil Procedure Rules 2010.
Orders
- Parties to prepare the case for trial as per Civil Procedure Rules 2010.
- Matter to be mentioned in 30 days for directions for trial.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 4879 OF 1988
ANDREW ATAMBO ………..……….........…............…………..PLAINTIFF
VERSUS
CONTINENTAL DEVELOPERS LIMITED……............................… DEFENDANT
Coram:Mwera J
Ms Munga for Tolo for plaintiff
Muchiri for Rach for defendant
Njoroge court clerk
RULING
By the notice of motion dated 25. 11. 10 the plaintiff invoked the powers donated by the now repealed Order X rule 20, Order L rule 1 of the Civil Procedure Rules and Sections 3, 3A of the Civil Procedure Act praying:
i) that the defence dated 17. 3.89 be struck out;
because the defendant had failed to comply with the order of the court dated 23. 11. 09 requiring it to make discovery within 14 days. The suit could not be prepared for trial for that non - compliance. A supporting affidavit reiterated what appears in the grounds.
There does not seem to be that the defendant replied by an affidavit what the plaintiff contended but both sides submitted and the court perused the scripts.
The court was however not minded to proceed to determine the application for the reason that since the filing of the application, the Civil Procedure Rules 2010 had come into operation. They cater for the course the parties should take in order to prepare a case for trial. The regime is complete as regards what ought to be done with witness statements, issues, documents to be relied on, endeavors to settle, arbitration etc.
With that regime in place, may the parties prepare the case herein for trial as per Civil Procedures Rules 2010 and have a mention in 30 days from the date hereof with a view to consider directions for trial.
Orders accordingly. Costs in the cause.
Delivered on 8/3/11.
J. W. MWERA
JUDGE